Post The ERISA Plan

One way to make ERISA easier for employees to understand would be to post the employer’s plan online where they can see what protections they are supposed to get. Airing out the protections and restrictions of employer purchased insurance policies would make it easier for employees to know their coverages and limitations, and is now a common practice for many larger employers.

This would bring the reality of the contractual relationship of employees a little closer to the harsh reality created for them in U.S. Airways v.McCutchen, 133 S. Ct. 1537 (2013). If the fair reach of Equity is precluded by the employee’s supposed agreement with the terms of an employee welfare benefit plan, the employee ought to have a reasonable way to know what the terms of the plan are.

Most of the time the plan details and the insurance policies which underwrite the plans are hidden away in the Human Resources Department of the employing entity. Even if an employee was aware of this situation when becoming employed, the employee would have to ask for a copy of the ERISA plan from the Human Resources department and would probably be given a copy of the Summary Plan Description (SPD) instead. The SPD is supposed to accurately convey, in simple language, the terms of the plan.

However, reading the SPD would do the employee little good because the Supreme Court has held that the SPD is not the plan and only the language of the plan itself is the law of any case brought under it, Cigna v. Amara, 131 S. Ct. 1866 (2011). So, even if an employee knows enough to ask for a copy of the plan, what he or she would probably get (the SPD) would not be the final say in any dispute.

In fact, even if the SPD is flat out wrong, the employee cannot rely on it if the SPD contradicts the plan itself.

With this in mind, we were absolutely floored by the decision in McCutchen. If the law of the case is the plan itself and the employee never sees it until requesting it (which is usually after a claim accrues), how did the Court base its decision on holding that the plan is what the employee bargained for and therefore they are bound by its terms?

McCutchen makes it more imperative that employees learn about their ERISA plan as soon as they can before or when they become employed. If courts are going to hold them to having bargained for the plan terms, in all fairness they should be able to know the terms of the bargain when they become employed.

Making the full plan available online seems the easiest way to accomplish this.




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